United States District Court, D. Vermont
BRIAN J. KEARNEY, Plaintiff,
v.
OKEMO LIMITED LIABILITY COMPANY, d/b/a Okemo Mountain Resort, and THE UNITED STATES SKI AND SNOWBOARD ASSOCIATION, Defendants.
OPINION AND ORDER RE: DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (DOC. 58)
Geoffrey W. Crawford, Judge.
Plaintiff
Brian J. Kearney brings this personal injury action against
Defendants Okemo Limited Liability Company, doing business as
Okemo Mountain Resort, and the United States Ski and
Snowboard Association ("USSA"), alleging negligent
installation of safety netting during a downhill alpine ski
race in February 2015. Defendants seek summary judgment on
the ground that Plaintiff signed a release prior to his
participation in the race. The court heard argument on
Defendants' Motion on July 25, 2016. For the reasons
discussed below, Defendants' Motion for Summary Judgment
(Doc. 58) is DENIED.
Background
The
court considers only those facts relevant to the pending
motion.
Plaintiff
was seriously injured while competing in an amateur downhill
ski race at Okemo Mountain Resort ("Okemo") in
Ludlow, Vermont in February 2015. USSA sanctioned the
competition. To be eligible to participate, individuals had
to have a USSA membership and proper ski equipment.
Participants also had to conduct a visual inspection of the
course and take at least two official training runs prior to
the race.
Plaintiff
became a USSA member on December 16, 2014 for the 2014-2015
ski season through U.S. S A's website. As part of the
U.S. S A membership registration process, registrants were
required to acknowledge and agree to be bound by the terms of
USSA's Assumption of Risk and Release of Liability
agreement (the "release"). (Doc. 61-16 at 10-11.)
The
release contained the following exculpatory provision:
Member hereby unconditionally WAIVES AND RELEASES ANY AND ALL
CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY
USSA FROM ANY CLAIMS, present or future, to Member or his/her
property, or to any other person or property, for any loss,
damage, expensive, or injury (including DEATH), suffered by
any person from or in connection with Member's
participation in any Activities in which USSA is involved in
any way, due to any cause whatsoever, INCLUDING NEGLIGENCE
and/or breach of express or implied warranty on the part of
USSA.
(Doc. 58-5 at 2.) As used in the release, "USSA"
referred to USSA and "its subsidiaries, affiliates,
officers, directors, volunteers, employees, coaches,
contractors and representatives, local ski clubs, competition
organizers and sponsors, and ski and snowboard facility
operators." (Id.) The term
"Activities" included "skiing and snowboarding
in their various forms, as well as preparation for
participation in, coaching, volunteering, officiating and
related activities in alpine, nordic, freestyle, adaptive,
and snowboarding competitions and clinics."
(Id.) The release also contained a choice-of-law
provision, which stated that it would be "construed in
accordance with, and governed by the substantive laws of the
State of Colorado, without reference to principles governing
choice or conflict of laws." (Id.)
Analysis
I.
Summary Judgment Standard
A party
is entitled to summary judgment when it shows "that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). "Material facts" are those
that, under the applicable substantive law, "might
affect the outcome of the suit." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a
"material fact" is "genuine" only if
"the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
A party opposing a properly pleaded summary judgment motion
"may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that
there is a genuine issue for trial." Id. at 256
(citations omitted). If the nonmovant offers evidence that
"is merely colorable, or is not significantly probative,
summary judgment may be granted, " id. at
249-50 (citations omitted), but "all ambiguities must be
resolved and all inferences drawn in favor of the party
against whom summary judgment is sought." Gallo v.
Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1223 (2d Cir. 1994) (citation omitted).
II.
Plaintiffs Acceptance of Click-Wrap Release
The
type of release at issue in this case is commonly referred to
as a "click-wrap" agreement.[1] See Feldman
v. Google, Inc., 513 F.Supp.2d 229, 236 (E.D. Pa. 2007)
(leading case discussing click-wrap agreements). Courts
routinely find these types of agreements enforceable. See
Id. at 236-43; see also Fteja v. Facebook,
Inc., 841 F.Supp.2d 829, 837 (S.D.N.Y. 2012);
TradeComet.com LLC v. Google, Inc., 693
F.Supp.2d 370, 377-78 (S.D.N.Y. 2010). Because the click-wrap
technology does not permit the customer to continue to use
the website unless he or she clicks on the required box on
the screen, courts have accepted proof of use at the site as
evidence of the customer's agreement. See
Feldman, 513 F.Supp.2d at 232-33, 235; Fteja,
841 F.Supp.2d at 834-35, 841.
Plaintiff
admits that he applied for a USSA membership online, but
states that he has no recollection of seeing or acknowledging
the release. (Doc. 61 -27 at ¶ 11.) He attempts to
create a factual dispute by asserting that Defendants have
yet to produce a release signed or initialed by him. However,
unlike when a person physically signs a paper contract, such
documentation does not necessarily exist in the click-wrap
context. (See Doc. 61-16 at 27 (noting that
screenshot images for each step of membership process are not
saved in USSA's computer database).) Nevertheless, courts
frequently enforce such agreements. For example, in
Feldman, the plaintiff challenged the validity of a
forum selection clause in an electronic click-wrap agreement.
513 F.Supp.2d at 231. In support of the agreement's
enforceability, the defendant relied upon an affidavit from
an information technology representative familiar with the
steps that the plaintiff would have needed to go through in
order to create the online account that plaintiff
indisputably had created. See Id. at 232-33. The
representative testified that in order to complete the
account sign-up process, the plaintiff would have been
required to accept certain terms and conditions by checking a
"Yes, I agree" box. See Id. If plaintiff
had failed to check this box, he would not have been able to
complete his application, activate his account, or incur
charges. See Id. The representative testified that
plaintiff did activate his account and had incurred charges,
and the court found this evidence sufficient to authenticate
the click-wrap agreement. See Id. at 232-33. 235;
see also Fteja, 841 F.Supp.2d at 831, 834-35, 841
(to counter plaintiff s argument that there was no proof he
agreed to forum selection clause, defendant offered similar
evidence showing that plaintiff was Facebook user and could
not have become one unless agreeing to Facebook's terms
of use).
Here,
USSA's information technology representative and software
developer, Dana Alexandrescu, was deposed and offered
testimony regarding USSA's online membership process and
Plaintiffs application. Ms. Alexandrescu testified that she
has been familiar with USSA's website and the online
membership process since its inception in 2008. She produced
demonstrative exhibits of the release currently in use by
USSA and testified that the same agreement has been used in
USSA's online membership process since 2008. All online
registrants since 2008 have been required to read and
acknowledge the release by checking a box that states,
"I HAVE CAREFULLY READ THE FOREGOING AND UNDERSTAND IT
TO BE A LEGALLY BINDING RELEASE AND INDEMNITY
AGREEMENT." (Doc. 61-16 at 10; Doc. 61-17 at 13.) Ms.
Alexandrescu testified that the USSA website has never
permitted a registrant to become a USSA member without
checking this box. If a registrant were to not agree to the
release and leave the box unchecked, the page with the
release would continuously reload and ...